Why Didn't The MPAA Weigh In On Garcia v. Google?

from the couldn't-bring-themselves-to-support-google? dept

We already mentioned the amicus brief we submitted about the risks concerning intermediary liability (authored by lawyer Cathy Gellis) in the Garcia v. Google case. In it, we noted that the 9th Circuit had set up a page where all such filings are listed and that we planned to write about some of the other briefs. Of course Eric Goldman beat me to it, discussing all of the various amicus briefs and what they focus on. In short, though:

Public Citizen's brief, submitted a while ago, focuses on whether or not an injunction against Google is appropriate, and explains why it is not.

An excellent brief from EFF, ACLU, Public Knowledge, CDT, New Media Rights, American Library Association and the Association of Research Libraries covers a lot of ground in under 2,500 words, highlighting the "novel" nature of the copyright claim and its "dangerous implications." It also highlights how the focus on the potential harms to Garcia are not copyright-related harms. Finally, it notes that the gag order Kozinski ordered was unconstitutional.

A bunch of news organizations, including the LA Times, the Washington Post, NPR, Scripps, Advance Publications, the California Newspaper Association, RCFP, First Amendment Coalition and DMLP, submitted a brief on both the First Amendment issues raised by the ruling, and how it might lead to news organizations being blocked from publishing newsworthy content.

A separate brief from California broadcasters focused on the oddity of Kozinski's interpretation of copyright law, and how that will "create confusion."

Another fantastic brief comes from a variety of tech companies, including Twitter, Automattic, Kickstarter, Facebook, Yahoo, Tumblr, eBay, Adobe, IAC, Gawker and Pinterest. It highlights how the injunction goes way beyond what the law allows, placing (again, as we noted in our brief) tremendous liability on intermediaries, such as requiring them to block all future uploads. It also challenges the gag order that was originally placed on Google as setting a very dangerous precedent.

Then we have the academics. A brief from internet law professors (written by Eric Goldman and Venkat Balasubramani, but signed by many more) covers the intermediary liability issue (like ours did) and highlights how this appears to be Garcia trying to use copyright as an end-run around Section 230.

Then there's a brief from IP law professors (written by Christopher Newman, Chris Sprigman and Julie Ahrens but signed by many more) focusing on the core ridiculousness of the claim that Garcia has a legitimate copyright interest in her performance. As they note: "the panel opinion in this case makes new law with corrosive implications for these foundational principles of copyright law."

Netflix weighed in to point out that this creates a "new species of copyright" and would give "an effective veto right to any performer."

Finally, a bunch of independent filmmakers, including the International Documentary Association, Film Independent, Morgan Spurlock and Fredrik Gertten, all submitted a brief about the "chaos" this will cause for filmmakers.

The last one is especially powerful and worth reading. But those final two -- from Netflix and those indie filmmakers -- actually highlight a glaring omission: Where is the MPAA? As we noted when the original ruling came out, it was so bad and so ridiculous that it ought to have actually united Google and the MPAA on a single copyright issue. Because if it stands, both will suffer greatly.

And yet, so far, the MPAA appears to be sitting this one out. Eric Goldman, in his post, speculated as to possible reasons, none of which look good for the MPAA:

Noticeably absent from the amicus brief roster are the big entertainment companies, such as the major movie studios and the record labels. Given that this case involves video production, something Google/YouTube don’t know much about, where are the real experts on this topic? One possibility is that they are hubristic enough to believe that they run such a tight legal ship that they will never run into problems with the court’s holding. Another possibility is that they are spiteful enough to delight in Google’s misery, even if the rule ultimately hurts them too (i.e., the enemy of my enemy is my friend). Yet another possibility is that they are happy to free-ride on Google’s efforts, getting all the benefit of Google fixing the law without any of the financial or reputational costs of siding against Garcia or supporting a deceitful rogue film producer. Whatever the reason, I can’t say that I favorably regard their decision to stand on the sidelines as the Ninth Circuit is trying to wreck their industry.

Not a glaring absence, an obvious one. Why go on record one supporting one side of this argument when the other side might suit you better next week? Not that being self-contradictory has stopped them before, but maybe they've been reading this blog and are catching on.

Re: Silence is damaging too

A theoretical possibility.The bid studios have the lawyers to ensure that any contract awarded to an actor/actress is heavily biased in the studios favor. Because of this the big names demand what they think they are worth up-front. However an independent producer may not be as careful with contracts, therefore if this decision stands they could possibly stir up trouble if an independent film producers starts to become a threat to their business, or too successful, by talking to the actors/actresses and offering them carrots to take legal action.

Re: I have to wonder...

Would make for an interesting scheme, but given it relies on the SC acting sane with regards to copyright, and ruling widely enough to affect more than this one case, it would also be a dicey plan to say the least.

And that's assuming the SC didn't just punt it back down for the lower courts to fight over, these days they don't really seem to care much for doing their jobs, much like the rest of the government.

What if it's a crooked game?

There's some old advice about what to do when you find yourself in a crooked poker game:

“Get out!”

Use any excuse possible. Just get out of the game and walk away. Don't —whatever you do— don't call the other players on their cheating. Just get out and walk away.

You've got to admit that this whole situation has looked fishy as all hell from the get-go. If the movie studios look at what's going on and if they see a crooked game… …well, you can't blame 'em for just walking the other way.

Re: What if it's a crooked game?

Thing is though, you walk out of a crooked poker game, that's it, it can't affect you past that. Walking away from a court case that can very much affect you in the future though? That's not 'good advice', that's sheer stupidity and/or hubris.

Why is it assumed MPAA actually represents studio interests

It strikes me that the MPAA does not really represent studio interests. Like NSA/FBI fixation on "collect it all", MPAA has for some years been totally absorbed in "defeating piracy". It's revenue is from the studios and the measure seems to be how many noxious laws they can cajole through legislatures, how many competitors they can burn and so on. This war on "piracy" does not appear to serve the real long term objectives of the studios, only the payments to the MPAA. MPAA is uninterested because fighting this does not fit the MPAA's current monomaniacal agenda. The studios really should be asking why they pay the MPAA.

Re: I have to wonder...

The reason is pretty clear why the MPAA didn't join in , There's no monetary value/gain in it for them , mark my words, if they even remotely thought there was some financial gain involved ,they'd of been all over it.

Re:

I hope that Garcia wins solely for the reason that it give the MPAA a headache because if every actor can claim copyright on their part it will losen the MPAA's copyright grip on films. The MPAA will no doubt either get actors to sign a contract that signs their individual copyright claim on their acting over to the MPAA if they want to act in the film or the MPAA will do everything to get new laws created to make it that actors cannot have copyright on their acting part in the film.

Garcia v Google and Amicus Briefs

It's likely the MPAA didn't file an amicus brief because it has long recognized that actors' performances can sometimes be copyrightable pantomimes, choreography or (if dialogue originates with the actor) literary material. They have little if any risk flowing from the Garcia decision, since (1) many or even most actors are "employees" of the producer, (2) they usually get at least a short document confirming the producer's ownership, (3) even if they failed to do that, as Judge Kozinski noted in his decision, in almost all cases there would be an extremely broad implied license to use the performance in the film. As to news and documentaries, it is highly unlikely that common garden variety movement and expression would be "original" enough to be copyrightable. In spite of the Google-encouraged amicus briefs, the sky will not fall, even on amateurs, documentarians and news reporters, as a result of this decision.